Sheri Minarsky v. Susquehanna County

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-2646
_____________
SHERI MINARSKY
Appellant
v.
SUSQUEHANNA COUNTY;
THOMAS YADLOSKY, JR.
_____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(District Court No.: 3-14-cv-02021)
District Judge: Honorable Robert D. Mariani
______________
Argued April 18, 2018
______________
Before: GREENAWAY, JR., RENDELL, and FUENTES,
Circuit Judges
(Opinion Filed: July 3, 2081)
David M. Koller, Esq. [ARGUED]
Erin Grewe, Esq.
Koller Law
2043 Locust Street
Suite 1B
Philadelphia, PA 19103
Counsel for Appellant Sheri Minarsky
Dana M. Zlotucha, Esq. [ARGUED]
Michael J. Donohue, Esq.
Kreder Brooks Hailstone
220 Penn Avenue
Suite 200
Scranton, PA 18503
Counsel for Appellee Susquehanna County
Gerald J. Hanchulak, Esq. [ARGUED]
The Hanchulak Law Offices
604 South State Street
Clarks Summit, PA 18411
Counsel for Appellee Thomas Yadlosky, Jr.
2
____________
O PI N I O N
____________
RENDELL, Circuit Judge:
Thomas Yadlosky, the former Director of
Susquehanna County’s Department of Veterans Affairs, made
unwanted sexual advances toward his part-time secretary,
Sheri Minarsky, for years. She never reported this conduct
and explained in her deposition the reasons she did not do so.
Although Yadlosky was warned twice to stop his
inappropriate behavior, it was to no avail. The County
ultimately terminated Yadlosky when the persistent nature of
his behavior toward Minarsky came to light.
Minarsky seeks to hold Yadlosky, her supervisor,
liable for sexual harassment, and her former employer,
Susquehanna County, vicariously liable for said harassment.
At issue in this case are the two elements of the Faragher-
Ellerth affirmative defense that Susquehanna County has
raised. 1 In granting summary judgment in favor of the
1
To successfully invoke the Faragher-Ellerth affirmative
defense, an employer must show that (i) it “exercised
reasonable care to avoid harassment and to eliminate it when
it might occur,” and that (ii) the plaintiff “failed to act with
like reasonable care to take advantage of the employer’s
safeguards and otherwise prevent harm that could have been
avoided.” Faragher v. City of Boca Raton, 524 U.S. 775, 805
(1998).
3
County, the District Court held that the elements of this
defense had been proven as a matter of law. We conclude that
given the facts of this case, the availability of the defense
regarding both the first element, whether the County took
reasonable care to detect and eliminate the harassment, as
well as the second element, whether Minarsky acted
reasonably in not availing herself of the County’s anti-
harassment safeguards, should be decided by a jury.
Accordingly, we will vacate the judgment of the District
Court and remand for further proceedings. 2
I. Factual Background
On appeal from the grant of summary judgment in
favor of Defendant Susquehanna County, we view the facts in
the light most favorable to Plaintiff Minarsky. Nevertheless,
the facts are largely undisputed.
A. Yadlosky’s Alleged Harassment
Minarsky served as a part-time secretary at the
Susquehanna County Department of Veterans Affairs,
working Mondays, Wednesdays, and Fridays. On Fridays,
Minarsky worked for Defendant Yadlosky. They worked
together in an area separate from other County employees. 3
2
Minarsky also challenges the District Court’s dismissal of
her remaining state law claim of assault against Yadlosky for
lack of supplemental jurisdiction, but that issue is moot in
light of our decision.
3
Yadlosky was a full-time employee, but worked out of
different offices on the other days.
4
Minarsky alleges that soon after she started working at the
Department in September of 2009, Yadlosky began to
sexually harass her. Yadlosky would attempt to kiss her on
the lips before he left each Friday, and would approach her
from behind and embrace her, “pull[ing] [her] against him.”
A. 98. When Minarsky was at her computer or the printer,
Yadlosky would purportedly massage her shoulders or touch
her face. She testified that these advances were unwanted, and
happened frequently—nearly every week. As they worked
together, alone, others were seldom present to observe
Yadlosky’s conduct, other than during the holiday season
each year, when Yadlosky asked Minarsky and other female
employees to kiss him under mistletoe. 4
Yadlosky engaged in other non-physical conduct that
Minarsky found disturbing. For example, he often questioned
Minarsky about her whereabouts during her lunch hour and
with whom she was eating. He called her at home on her days
off under the pretense of a work-related query but proceeded
to ask personal questions. Yadlosky allegedly became hostile
if she avoided answering these calls. He sent sexually explicit
messages from his work email to Minarsky’s work email, to
which Minarsky did not respond. He also behaved
unpredictably, as on one occasion when he insisted that
Minarsky take two full days off, unpaid, to drive her daughter
to her cancer treatment, but soon after, he chastised her for
seeking time off—even though it fell on days they did not
work together.
4
Another instance noted in the record of an employee
observing Yadlosky’s behavior toward Minarsky is the
incident involving Connie Orangasick. See infra pp. 6–7.
5
Minarsky alleges that the harassment intensified as
time passed. When the harassment first began, she mildly and
jokingly told him to stop. He did not. She claims that
Yadlosky knew that her young daughter was ill and thus
knew Minarsky depended on her employment to pay medical
bills. She states that she feared speaking up to him in any
context, let alone to protest his harassment, because he would
react and sometimes become “nasty.” A. 142.
B. Prior Reprimands
Yadlosky reported to Sylvia Beamer, the Chief County
Clerk, who reported to the Susquehanna County
Commissioners. On two separate occasions, Beamer became
aware of Yadlosky’s inappropriate behavior toward other
women, and reprimanded him. County Commissioner
Maryann Warren was aware of one of these incidents. First,
in 2009, Beamer observed Yadlosky embrace a female
employee. Beamer verbally admonished Yadlosky and told
him that such behavior was inappropriate. Second,
Commissioner Warren observed Yadlosky act inappropriately
with the County’s Director of Elections in late 2011 or early
2012. Warren notified Beamer that she saw Yadlosky hug the
Director and kiss her on the cheek. Beamer verbally
reprimanded Yadlosky once again and told him he could face
termination if his inappropriate behavior continued. After
both incidents, there was no further action or follow-up, nor
was any notation or report placed in Yadlosky’s personnel
file.
Minarsky became aware of the first reprimand, but not
the second. In Minarsky’s deposition, she recounted a time
when another employee, Connie Orangasick, saw Yadlosky
6
approaching Minarsky from behind and hugging her.
Orangasick walked by, noticed the situation, and said to
Yadlosky, “I thought you said yesterday you’re not supposed
to do that anymore.” A. 99. A few minutes later, he responded
that he could do whatever he wanted “[o]ver here,” referring
to the building where he and Minarsky were largely separated
from other employees. A. 100. When Minarsky followed up
with Orangasick, she learned that Beamer had warned
Yadlosky about his inappropriate behavior. After being
warned, he then allegedly came back to his office and joked
about the incident to Orangasick.
Minarsky also learned that other women had similar
encounters with Yadlosky. In addition to the mistletoe
episodes, Minarsky spoke to another secretary, Rachel
Carrico, who mentioned that she had problems with
Yadlosky’s hugging, as well. Also, once when Beamer was in
the Veterans Affairs office, Minarsky observed Yadlosky as
he was attempting to embrace Beamer, but she stopped him
and said, “Get away from me.” A. 111.
C. The County’s Anti-Harassment Policy
On her first day of work, Minarsky read and signed
Susquehanna County’s General Harassment Policy. It states
that harassment based upon “sex, age, race, religion, national
origin, ethnicity, disability, sexual preference and any other
protected classification” is prohibited. A. 166; A. 205–06.
According to the policy, an employee could report any
harassment to their supervisor; if the supervisor is the source
of the harassment, the employee could report this to the Chief
County Clerk or a County Commissioner.
7
During the four years Minarsky avers that she was
harassed by Yadlosky, she did not report this harassment to
either Beamer, the Chief County Clerk, or any of the County
Commissioners. Minarsky alleges that she feared elevating
the claims to County administrators, because Yadlosky
repeatedly warned her not to trust the County Commissioners
or Beamer. She claims that he would often tell her to look
busy or else they would terminate her position. These
warnings, Minarsky contends, along with the fact that
Yadlosky had been reprimanded unsuccessfully for his
inappropriate advances toward others, prevented her from
reporting Yadlosky.
D. Yadlosky’s Termination
In her deposition, Minarsky recounted that she finally
revealed the harassment and its emotional toll on her health to
her physician in April of 2013. The doctor discussed the
situation with Minarsky and emphasized the need to bring an
end to the conduct. She encouraged Minarsky to compose an
email to Yadlosky, so she would have some documentation.
Minarsky testified that she agonized over this, but
finally sent Yadlosky an email on July 10, 2013, prompted by
the incident in which Yadlosky allegedly reacted negatively
when Minarsky asked to take time off for her daughter’s
treatment. She wrote, “I want to just let you know how
uncomfortable I am when you hug, touch and kiss me. I don’t
think this is appropriate at work, and would like you to stop
doing it. I don’t want to go to Sylvia [Beamer]. I would rather
resolve this ourselves.” A. 170. Yadlosky responded,
8
First and more importantly, I never meant to
make you feel uncomfortable nor would I ever
want to offend you in any way and I will STOP
IMMEDIATELY. Secondly, almost from the
first day you started (3 years and 9 months) I
have been affectionate to you, among other
people I was close to[] (only in a friendly
manner, no other way intended), why have you
never said anything to me before. Third, and to
me most important, I thought we had a very
good working relationship where we could
approach one another on any matters. It disturbs
me that you would put this out on an e-mail and
not talk to me about this. Apparently I was
wrong on thinking that. If you wanted to do this
in writing, for proof, you could have typed this
out and I would have signed it and you could
have kept it.
A. 170. He confronted Minarsky about the email on July 12;
she claims that he seemed mostly concerned that his
reputation might be tarnished if someone else read her email.
Around the same time, Minarsky confided in her friend
and co-worker, Rachel Carrico, about Yadlosky’s harassment.
When Carrico mentioned what was happening between
Yadlosky and Minarsky to another employee, Carrico’s
supervisor overheard the conversation and reported
Yadlosky’s conduct to Beamer. At first, Minarsky objected,
for fear of losing her job. But Beamer had already been
notified, and she interviewed Minarsky about her allegations
within a few days. Beamer informed the County
Commissioners, who agreed that Yadlosky should be
9
terminated. The next day, Beamer interviewed Yadlosky.
When he admitted to the allegations, Yadlosky was
immediately placed on paid administrative leave, and then
terminated. The County then hired a Human Resources
Director to oversee personnel issues.
Minarsky quit several years later, and she alleges she
was uncomfortable in her role after Yadlosky was fired,
because her workload increased, and because of inquiries
from her new supervisor asking about what had transpired
with Yadlosky and who else she had caused to be fired.
II. Procedural History
Plaintiff Minarsky filed a Complaint, Amended
Complaint, and a Second Amended Complaint with five
causes of action against Susquehanna County and two against
Yadlosky. The counts against the County were: gender
discrimination, sexual harassment through a hostile work
environment, and quid pro quo sexual harassment, all under
Title VII of the Civil Rights Act; gender discrimination under
the Pennsylvania Human Relations Act (PHRA); and
negligent hiring and retention under Pennsylvania state law.
The counts against Yadlosky, all under state law, were:
gender discrimination under the PHRA (later withdrawn),
intentional infliction of emotion distress (IIED), and assault.
The District Court granted Yadlosky’s Motion to
Dismiss the IIED claim but denied the County’s Motion for
Judgment on the Pleadings. After discovery, the County
moved for summary judgment. The District Court adopted the
Magistrate Judge’s Report and Recommendation and granted
the County’s Motion for Summary Judgment, while
10
dismissing the remaining count of assault against Yadlosky—
the lone remaining state law claim—for lack of supplemental
jurisdiction.
On appeal, Minarsky claims that the District Court
erred in finding that the County had satisfied both elements of
the Faragher-Ellerth affirmative defense as to the claim of
sexual harassment through a hostile work environment and
erred in dismissing the state law claim for lack of
supplemental jurisdiction.
III. Standard of Review
The District Court had jurisdiction pursuant to 28
U.S.C. §§ 1331 and 1367. This Court has jurisdiction over
final orders of the District Court pursuant to 28 U.S.C.
§ 1291.
We exercise plenary review over the grant or denial of
summary judgment and apply the same standard the district
court should have applied. Giles v. Kearney, 571 F.3d 318,
322 (3d Cir. 2009). Summary judgment is appropriate when,
drawing all reasonable inferences in favor of the nonmoving
party, “the movant shows that there is no genuine dispute as
to any material fact,” and thus the movant “is entitled to
judgment as a matter of law.” Thomas v. Cumberland Cty.,
749 F.3d 217, 222 (3d Cir. 2014) (quoting Fed. R. Civ. P.
56(a)). We deny summary judgment if there is enough
evidence for a jury to reasonably find for the nonmovant.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
11
IV. Hostile Work Environment Claim
On appeal, Minarsky does not contest the District
Court’s grant of summary judgment on the claims for gender
discrimination and quid pro quo sexual harassment in
violation of Title VII and the PHRA. Thus, we focus our
analysis on the claim of sexual harassment based on a hostile
work environment. To establish a Title VII hostile work
environment claim against one’s employer, a plaintiff
employee must prove:
1) the employee suffered intentional
discrimination because of his/her sex, 2) the
discrimination was severe or pervasive, 3) the
discrimination detrimentally affected the
plaintiff, 4) the discrimination would
detrimentally affect a reasonable person in like
circumstances, and 5) the existence
of respondeat superior liability.
Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d
Cir. 2013) (internal citations omitted). Defendant
Susquehanna County only contests the fifth prong, vicarious
liability, which frames our analysis on appeal.
A. The Faragher-Ellerth Affirmative Defense
In the companion cases of Faragher v. City of Boca
Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742 (1998), the U.S. Supreme Court
established standards for when an employee who was
harassed in the workplace by a supervisor may impute
liability to the employer. In doing so, the Court acknowledged
12
the sensitive nature of workplace harassment: “a supervisor’s
power and authority invests his or her harassing conduct with
a particular threatening character.” Ellerth, 524 U.S. at 763.
If the harassment resulted in a “tangible employment
action” against the employee, then the employer is strictly
liable. Jones v. Se. Pa. Transp. Auth., 796 F.3d 323, 328 (3d
Cir. 2015) (quoting Pa. State Police v. Suders, 542 U.S. 129,
143 (2004)). The Supreme Court has described a tangible
employment action as “hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.” Ellerth,
524 U.S. at 761. 5
However, if the harassed employee suffered no
tangible employment action, as in the present scenario, 6 the
employer can avoid liability by asserting the Faragher-
5
To prove a claim for gender discrimination under Title VII
or the PHRA and quid pro quo sexual harassment under Title
VII, a plaintiff must show that she suffered an adverse
employment action, or “an action by an employer that is
serious and tangible enough to alter an employee’s
compensation, terms, conditions, or privileges of
employment.” Jones, 796 F.3d at 326 (quoting Storey v.
Burns Int’l Sec. Servs., 390 F.3d 760, 764 (3d Cir. 2004)).
“Regardless of whether [tangible employment action] means
precisely the same thing as ‘adverse employment action,’ we
think it clear that neither phrase applies” in this case. Id. at
328.
6
Minarsky did not proffer evidence that she was reassigned,
discharged, or demoted.
13
Ellerth affirmative defense. The employer must show “(a)
that the employer exercised reasonable care to prevent and
correct promptly any sexually harassing behavior, and (b) that
the plaintiff employee unreasonably failed to take advantage
of any preventive or corrective opportunities provided by the
employer or to avoid harm otherwise.” Faragher, 524 U.S. at
807; Ellerth, 524 U.S. at 765.
The cornerstone of this analysis is reasonableness: the
reasonableness of the employer’s preventative and corrective
measures, and the reasonableness of the employee’s efforts
(or lack thereof) to report misconduct and avoid further harm.
Thus, the existence of a functioning anti-harassment policy
could prove the employer’s exercise of reasonable care so as
to satisfy the first element of the affirmative defense.
Faragher, 524 U.S. at 807.
To prove the second element of the affirmative
defense, that the plaintiff unreasonably failed to avail herself
of the employer’s “preventive or corrective opportunities,”
the Supreme Court has held that “proof that an employee
failed to [exercise] reasonable care to avoid harm . . . will
normally suffice to satisfy the employer’s burden under the
second element of the defense.” Id. at 807–08; Ellerth, 524
U.S. at 765.
B. District Court Rulings
The Magistrate Judge recommended that the District
Court grant summary judgment on all counts. He determined
that the County acted reasonably: first, for maintaining an
anti-harassment policy, with which Minarsky was familiar,
14
and second, for reprimanding Yadlosky for his inappropriate
conduct two times in the past and for promptly terminating
Yadlosky once his misconduct toward Minarsky came to
light.
The Judge also found Minarsky’s silence—her failure
to report the harassment—unreasonable. “The County’s
reasonable policies and responses,” the Magistrate Judge
wrote, “are set in stark contrast to the plaintiff’s refusal or
unwillingness to avail herself of the County’s anti-harassment
policy to bring Yadlosky’s conduct to the attention of County
officials.” Minarsky v. Susquehanna Cty., 2017 WL 4475978,
at *6 (M.D. Pa. May 22, 2017). The Magistrate Judge
dismissed Minarsky’s alleged apprehension of the Chief
Clerk and County Commissioners as unreasonable, because
her mistrust of them came “from the very employee Minarsky
claims was harassing her,” and was not sufficient to excuse
her failure to report. Id. He cited to caselaw for the principle
that a prolonged failure to report misconduct, when a policy
existed to report the conduct, is unreasonable as a matter of
law, under the facts of those cases. 7
The Magistrate Judge acknowledged that a failure to
avail oneself of a sexual harassment policy, in fear of
retaliation, may be reasonable when grounded in fact, which
7
E.g., Newsome v. Admin. Office of the Courts of the State of
N.J., 51 F. App’x 76, 80 (3d Cir. 2002) (non-precedential) (a
two-year delay in reporting harassment was unreasonable);
Gawley v. Ind. Univ., 276 F.3d 301, 312 (7th Cir. 2001)
(seven-month delay unreasonable); Cacciola v. Work N Gear,
23 F. Supp. 3d 518, 531–32 (E.D. Pa. 2014) (nine-month
delay unreasonable).
15
he distinguished from what he found to be Minarsky’s
unfounded concerns. He contrasted Minarsky’s situation with
the plaintiff’s in Still v. Cummins Power System, who
observed fellow employees suffer retaliation for having
followed the anti-harassment policy, and was thus justified in
not reporting. 2009 WL 57021, at *13 (E.D. Pa. Jan. 8, 2009).
Minarsky lodged objections to the Magistrate Judge’s
Report and Recommendation, but the District Court rejected
Minarsky’s objections and adopted the Report and
Recommendation in its entirety. The Court found that the
County satisfied the Faragher-Ellerth defense: although the
County was unaware of Yadlosky’s misconduct toward
Minarsky, it warned him after each prior incident and fired
him as soon as Beamer and the Commissioners were made
aware of the allegations, all while Minarsky did not avail
herself of the County’s sexual harassment policy because she
feared the consequences of reporting. The District Court
concluded, “no reasonable jury could find that Plaintiff acted
reasonably in failing to avail herself of the protections of the
sexual harassment policy.” Minarsky v. Susquehanna Cty.,
2017 WL 4475981, at *1 (M.D. Pa. June 28, 2017).
C. Analysis
1. Element One
The first element of the Faragher-Ellerth affirmative
defense concerns whether the County “exercised reasonable
care to prevent and correct promptly any sexually harassing
behavior.” Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at
765. We acknowledge that the County maintained a written
anti-harassment policy, which Minarsky was asked to read
16
and sign on her first day. The policy prohibited harassment in
the workplace, directed employees to report any harassment
to a supervisor, and provided that an employee “may” report
to the Chief Clerk or a County Commissioner if the
supervisor was the source of harassment. A. 166–67.
The District Court determined that the County had
reasonable policies and responses so as to satisfy the first
prong of Faragher-Ellerth as a matter of law. We disagree.
While Yadlosky was reprimanded twice and ultimately fired,
we cannot agree that the County’s responses were so clearly
sufficient as to warrant the District Court’s conclusion as a
matter of law. Yadlosky’s conduct toward Minarsky was not
unique; Minarsky’s deposition testimony revealed a pattern of
unwanted advances toward multiple women other than
herself. See, e.g., A. 102–03.
In addition to the mistletoe incidents and his advances
toward Rachel Carrico and Connie Orangasick, Yadlosky had
also made inappropriate physical advances to two of the
women in authority, Chief Clerk Beamer and Commissioner
Warren. Minarsky testified that when she later attended the
hearing to determine Yadlosky’s eligibility for unemployment
benefits, she was shocked to learn of the extent to which
Beamer knew of Yadlosky’s pattern of inappropriate physical
contact: apart from the two times Beamer reprimanded
Yadlosky for hugging other employees, Yadlosky tried to hug
Beamer, too. 8 In her deposition, Commissioner Warren also
8
In her deposition, Beamer testified, “Once I believe he was
going to [hug me]. It was in my office and he started to come
around my desk and I just said don’t go there. That was early
on.” A. 192:10–12.
17
testified that Yadlosky attempted to hug her, put his arm
around her, or kiss her on the cheek approximately ten times. 9
Although as a Commissioner, Warren was in a position to
discipline Yadlosky for his behavior, and although she raised
his misconduct to County Commissioner Hall, neither Warren
nor Hall reprimanded Yadlosky. 10 Thus, County officials
were faced with indicators that Yadlosky’s behavior formed a
pattern of conduct, as opposed to mere stray incidents, yet
they seemingly turned a blind eye toward Yadlosky’s
harassment.
Was the policy in place effective? Knowing of his
behavior, and knowing that Minarsky worked alone with
Yadlosky every Friday, should someone have ensured that
she was not being victimized? Was his termination not so
much a reflection of the policy’s effectiveness, but rather, did
it evidence the County’s exasperation, much like the straw
that broke the camel’s back? We do not answer these
questions, but conclude that there exists enough of a dispute
of material fact, and thus a jury should judge all of the facts
as to whether the County “exercised reasonable care to
prevent and correct promptly any sexually harassing
behavior,” Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at9
Warren: “He would kind of giggle like a girl, come around
the table and lean over and . . . hug me and tried to kiss me on
the cheek. . . . I backed the chair up, told him to get away,
[asked him what he was] doing and to stop being a jerk.” A.
260:16–18, 21–22.
10
In her deposition, Warren stated that she needed another
Commissioner to sign off if she were to take any action
against Yadlosky.
18
765, and thereby determine whether the County satisfied the
first element of Faragher-Ellerth.
2. Element Two
The second element, regarding the reasonableness of
Minarsky’s failure to report Yadlosky’s behavior, presents a
similarly troubling set of facts. On the one hand, she
remained silent and did nothing to avoid further harm. On the
other hand, her silence might be viewed as objectively
reasonable in light of the persuasive facts Minarsky has set
forth.
We are sensitive to the Supreme Court’s emphasis that
the second Faragher-Ellerth element is tied to the objective
of Title VII, to avoid harm, rather than provide redress.
Faragher, 524 U.S. at 806–07 (“[N]o award against a liable
employer should reward a plaintiff for what her own efforts
could have avoided.”). We also acknowledge that our case
precedent has routinely found the passage of time coupled
with the failure to take advantage of the employer’s anti-
harassment policy to be unreasonable, as did the District
Court here. E.g., Jones, 796 F.3d at 329. 11
Nevertheless, we cannot ignore Minarsky’s testimony
as to why she did not report Yadlosky’s conduct, and we
11
In Jones, the plaintiff’s ten-year delay in reporting her
alleged harassment was just one factor we credited in
concluding that the defendant satisfied Faragher-Ellerth.
19
believe that a jury could find that she did not act unreasonably
under the circumstances. 12
12
This appeal comes to us in the midst of national news
regarding a veritable firestorm of allegations of rampant
sexual misconduct that has been closeted for years, not
reported by the victims. It has come to light, years later, that
people in positions of power and celebrity have exploited
their authority to make unwanted sexual advances. In many
such instances, the harasser wielded control over the harassed
individual’s employment or work environment. In nearly all
of the instances, the victims asserted a plausible fear of
serious adverse consequences had they spoken up at the time
that the conduct occurred. While the policy underlying
Faragher-Ellerth places the onus on the harassed employee to
report her harasser, and would fault her for not calling out this
conduct so as to prevent it, a jury could conclude that the
employee’s non-reporting was understandable, perhaps even
reasonable. That is, there may be a certain fallacy that
underlies the notion that reporting sexual misconduct will end
it. Victims do not always view it in this way. Instead, they
anticipate negative consequences or fear that the harassers
will face no reprimand; thus, more often than not, victims
choose not to report the harassment.
Recent news articles report that studies have shown that not
only is sex-based harassment in the workplace pervasive, but
also the failure to report is widespread. Nearly one-third of
American women have experienced unwanted sexual
advances from male coworkers, and nearly a quarter of
American women have experienced such advances from men
who had influence over the conditions of their employment,
according to an ABC News/Washington Post poll from
October of 2017. Most all of the women who experienced
20
Although we have often found that a plaintiff’s
outright failure to report persistent sexual harassment is
unreasonable as a matter of law, particularly when the
opportunity to make such complaints exists, we write to
clarify that a mere failure to report one’s harassment is not
per se unreasonable. Moreover, the passage of time is just one
factor in the analysis. Workplace sexual harassment is highly
harassment report that the male harassers faced no
consequences. ABC News/Washington Post, Unwanted
Sexual Advances: Not Just a Hollywood Story (Oct. 17,
2017), http://www.langerresearch.com/wp-content/uploads/
1192a1SexualHarassment.pdf.
Additionally, three out of four women who have been
harassed fail to report it. A 2016 Equal Employment
Opportunity Commission (EEOC) Select Task Force study
found that approximately 75 percent of those who
experienced harassment never reported it or filed a complaint,
but instead would “avoid the harasser, deny or downplay the
gravity of the situation, or attempt to ignore, forget, or endure
the behavior.” EEOC Select Task Force,
Harassment in the Workplace, at v (June 2016),
https://www.eeoc.gov/eeoc/task_force/harassment/upload/rep
ort.pdf. Those employees who faced harassing behavior did
not report this experience “because they fear[ed] disbelief of
their claim, inaction on their claim, blame, or social or
professional retaliation.” Id.; see also Stefanie Johnson, et al.,
Why We Fail to Report Sexual Harassment, Harvard Business
Review (Oct. 4, 2016), http://hbr.org/2016/10/why-we-fail-to-
report-sexual-harassment (women do not report harassment
because of retaliation fears, the bystander effect, and male-
dominated work environments).
21
circumstance-specific, and thus the reasonableness of a
plaintiff’s actions is a paradigmatic question for the jury, in
certain cases. If a plaintiff’s genuinely held, subjective belief
of potential retaliation from reporting her harassment appears
to be well-founded, and a jury could find that this belief is
objectively reasonable, the trial court should not find that the
defendant has proven the second Faragher-Ellerth element as
a matter of law. Instead, the court should leave the issue for
the jury to determine at trial.
Here, Minarsky asserts several countervailing forces
that prevented her from reporting Yadlosky’s conduct to
Beamer or a County Commissioner: her fear of Yadlosky’s
hostility on a day-to-day basis and retaliation by having her
fired; her worry of being terminated by the Chief Clerk; and
the futility of reporting, since others knew of his conduct, yet
it continued. All of these factors were aggravated by the
pressing financial situation she faced with her daughter’s
cancer treatment.
First, the particular nature of Minarsky’s working
relationship with Yadlosky complicated the situation. They
worked alone one day each week, away from others, and on
other days he continued to monitor her, ostensibly utilizing
his control over her work environment to harass her.
Appellees argue that the superior-subordinate dynamic is
unremarkable, because all Faragher-Ellerth cases involve a
power imbalance wherein the harasser controls the working
conditions of the harassed. We disagree that this is irrelevant;
the degree of control and specific power dynamic can offer
context to the plaintiff’s subjectively held fear of speaking up,
for instance, if the supervisor “took advantage of the power
vested in them . . . to facilitate their abuse” or harassment.
22
Vance v. Ball State Univ., 570 U.S. 421, 458 (2013) (quoting
Faragher, 524 U.S. at 801).
Second, when Minarsky attempted to assert herself in
the workplace, she alleges that Yadlosky became “nasty,”
which deepened her fear of defending herself or disclosing
Yadlosky’s misconduct. For example, if she tried to request
personal days off or ignored his phone calls on days she was
not working, he became ill-tempered. She said,
He was just unpredictable with his
temperament. I had to watch what I said to him.
I had to watch how I acted around him. It
seemed if he didn’t get what he wanted, I
seemed to get treated more miserably. The day
would be harder if I spoke up about anything he
said or [did] in the office. I had to just watch
what I did.
A. 153:15–20; see also A. 158:6 (“[H]e had a temper.”).
Moreover, when asked why she was unable to vocally protest
Yadlosky’s attempts to kiss her, Minarsky stated that she
needed her job to pay her daughter’s medical bills, and
worried that she might lose her job or otherwise be retaliated
against if she voiced her distress. 13 When Yadlosky would
approach Minarsky because “he thought he should kiss [her]
on the lips before he left” each Friday, A. 97:21–22,
Minarsky stated in her deposition, “I did not know how to
respond. It happened so quickly. I was under probation so I
13
Minarsky did, however, refuse to walk into his office if
there was mistletoe hanging, and admits that this was the only
time she specifically voiced her discomfort.
23
was concerned that . . . if I did not, what was going to happen
[to my job].” 14 A. 98:10–12. Although she avers that she
meekly protested, she states, “I know I didn’t dare speak up to
him.” A. 99:10–11.
We distinguish this situation from one in which the
employee’s fear of retaliation is generalized and unsupported
by evidence. Several courts have held that a generalized fear
of retaliation is insufficient to explain a long delay in
reporting sexual harassment. See, e.g., Pinkerton v. Colo.
Dep’t of Transp., 563 F.3d 1052, 1063 (10th Cir. 2009)
(citing cases from the Fifth, Sixth, Eighth, and Eleventh
Circuit Courts of Appeals where a generalized fear of
retaliation did not excuse a two-to-four month delay in
reporting harassment). 15 The First Circuit Court of Appeals
has held that a fear of retaliation that is substantiated by
evidence in the record may excuse a failure to report, and the
jury should decide the credibility of the witness expressing
this fear. See Burns v. Johnson, 829 F.3d 1, 19 (1st Cir. 2016)
(finding “evidence in the record that Burns feared retaliation,
which is bolstered by the fact that others expressed fear of
14
When Minarsky first began working at the County, her
employment was probationary for the first six months.
15
See Casiano v. AT&T Corp., 213 F.3d 278, 280–81, 287
(5th Cir. 2000) (a four-month delay was unreasonable);
Thornton v. Fed. Express Corp., 530 F.3d 451, 457 (6th Cir.
2008) (two-month delay); Williams v. Missouri Dep’t of
Mental Health, 407 F.3d 972, 976 (8th Cir. 2005) (four-
month delay); Walton v. Johnson & Johnson Svcs., Inc., 347
F.3d 1272, 1277, 1290–91 (11th Cir. 2003) (two-and-a-half-
month delay).
24
retaliation for mere participation in the . . . investigation into
[the harassment, along with] evidence that Burns had earlier
reported her concerns, including to her direct supervisor”).
Here, Minarsky identifies instances where asserting
herself rendered her working conditions even more hostile,
and she was led to believe that she should not protest her
supervisor’s conduct. Presented with these facts, a reasonable
jury could find that Minarsky’s fear of aggravating her work
environment was sufficiently specific, rather than simply a
generalized, unsubstantiated fear. 16
Third, although Minarsky’s fear of retaliation was
subjective, we disagree with the District Court’s view that it
was clearly unfounded. Yadlosky discouraged her from using
the anti-harassment policy by underscoring that she could not
trust the Commissioners or the Chief Clerk—those to whom
she would report the harassment. He warned her that they
might “get rid” of Minarsky and her job, which she alleged
“made it very hard for [her] to think of going to them.” A.
101:20–21, 24–25. The District Court discounted this because
it was Yadlosky himself who made these comments. But the
fact that he was the harasser does not mean that Minarsky
should have disbelieved his comments about people in
authority whom he knew better than she did, and does not
render her fear unfounded. Minarsky was merely a part-time
employee. Yadlosky was the Director of Veterans Affairs for
the County. We do not think that her failure to avail herself of
16
The trial judge can instruct the jury that a plaintiff’s fears
must be specific, not generalized, in order to defeat the
Faragher-Ellerth defense.
25
this avenue was necessarily unreasonable, and a jury could
find the same.
Fourth, Minarsky discovered that the County had
known of Yadlosky’s behavior and merely slapped him on the
wrist, without more—bolstering Minarsky’s claim that she
feared the County would ignore any report she made. “[H]e
had been warned and it went nowhere,” she observed. A.
142:21. She proffered evidence that Yadlosky openly
disregarded his behavioral warnings in front of Minarsky and
continued to emphasize distrust with the County officials. She
said,
[The warning] didn’t phase him at all and he’s
telling me not to trust the Chief Clerk, the
Commissioners; they would get rid of me; they
would get rid of my job. I didn’t know how to
perceive that. Was this going to mean my job if
I speak up? It didn’t help the first time with the
first person speaking up.
A. 142:22–143:1 (emphasis added). A jury could find that
Minarsky reasonably believed that availing herself of the anti-
harassment policy would be futile, if not detrimental. See,
e.g., Harvill v. Westward Commc’ns, LLC, 433 F.3d 428, 437
(5th Cir. 2005) (a harassed employee “is not obligated to go
through the wasted motion of reporting the harassment” if the
employee reasonably believes that subsequent complaints
would be futile).
Fifth, a reasonable jury could consider the pernicious
nature of the harassment compounded with its frequency and
duration to contextualize Minarsky’s actions. Minarsky
26
endured over three-and-a-half years of being kissed on the
lips, touched, and embraced by her boss, without her consent,
all while he sent her explicit emails and monitored her
whereabouts. She witnessed him hugging others and asking
female employees to kiss him under mistletoe. Minarsky
seemingly agonized over her situation. She only revealed her
harassment to her husband years later, because she knew he
would have urged her to quit even though her family
desperately needed the money. When Minarsky eventually
did share her situation with her husband, she expressed that if
she quit, she then feared Yadlosky would harass her
replacement. 17 Even then, it was only after Minarsky’s
medical doctor emphasized that Minarsky was being treated
inappropriately, and encouraged her to confront Yadlosky to
hopefully bring an end to the harassment and its physical and
emotional toll, did Minarsky finally do so.
Rather than view this merely as Minarsky’s idle delay
in reporting, a jury could consider the aggravating effect of
prolonged, agonizing harassment as a way to credit
Minarsky’s fear of worsening her situation.
Appellees argue that Minarsky’s behavior was
unreasonable, given her knowledge of the County’s anti-
harassment policy and her failure to use the policy, by
pointing to the line in Minarsky’s email to Yadlosky, “I don’t
want to go to Sylvia. I would rather resolve this ourselves.”
A. 170. While Appellees characterize this as evidence
17
Minarsky: “I relayed to him that I was concerned about, if I
quit, Tom [will do] this to the next person. . . . How do I quit,
knowing that [Yadlosky is] going to continue this? How do I
get him to understand that it’s wrong?” A. 157:20–21, 22–24.
27
Minarsky deliberately refrained from using the policy’s
protections, Minarsky averred in her deposition that it was her
way of informing Yadlosky that she would resort to the
harassment policy if his conduct did not change. 18 Whether
this evidence negates the reasonableness of Minarsky’s non-
reporting is for the jury, not us, to decide.
In sum, Minarsky has produced several pieces of
evidence of her fear that sounding the alarm on her harasser
would aggravate her work environment or result in her
termination. A jury could consider this evidence and find her
reaction to be objectively reasonable. We therefore cannot
uphold the District Court’s conclusion that Minarsky’s
behavior was unreasonable as a matter of law.
Thus, we will vacate the District Court’s Order
granting summary judgment in favor of the County and
remand for further proceedings consistent with this opinion.
V. Supplemental Jurisdiction
Minarsky appeals the District Court’s ruling not to
exercise supplemental jurisdiction over her sole state-law
claim of assault against Yadlosky. Because we vacate the
dismissal of the hostile work environment claim under Title
VII of the Civil Rights Act, on remand, the District Court will
have a federal claim once again. The Court can therefore
choose to exercise supplemental jurisdiction over the state-
law claim, and thus we vacate the dismissal of the assault
18
“That was my way of saying I hadn’t gone to the Chief
Clerk but, if I need to, I will.” A. 115:22–23.
28
claim, as well. See Trinity Indus., Inc. v. Chi. Bridge & Iron
Co., 735 F.3d 131, 140–41 (3d Cir. 2013).
VI. Conclusion
For the foregoing reasons, the judgment of the District
Court is vacated and the case is remanded for further
proceedings consistent with this opinion.
29